5.7 Impaired Driving Cases: Notice to Seek Greater Punishment

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

The Criminal Code prescribes minimum sentences for second and subsequent “impaired driving” offences.Footnote 1 Mandatory minimum penalties for subsequent offences may be imposed only if Crown counsel proves that the accused was notified before plea that greater punishment would be sought because of previous convictions.Footnote 2

This guideline sets out the policy for seeking greater punishment for second and subsequent impaired driving offences.

The relevant sections of the Criminal Code are:

255. (1) Every one who commits an offence under section 253 or 254 is guilty of an indictable offence or an offence punishable on summary conviction and is liable,

  1. whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,
    1. for a first offence, to a fine of not less than $1000,
    2. for a second offence, to imprisonment for not less than 30 days, and
    3. for each subsequent offence, to imprisonment for not less than 120 days;

727. (1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.

2. Young Offenders

As a general rule, this guideline does not apply to the sentencing of young persons pursuant to the Youth Criminal Justice Act (YCJA).Footnote 3

Section 82(4) of the YCJA precludes the use of a guilty finding imposed under the YCJA as a previous ‘conviction’ for the purpose of imposing a mandatory minimum sentence because of a previous conviction.

However, where the circumstances in s. 119(9)(a) of the YCJA are satisfied, the guilty finding of a young person under the YCJA for a prior offence can be considered a previous conviction for purposes of imposing a mandatory minimum penalty on that person, as an adult, under s. 255 of the Criminal Code.Footnote 4

3. Service of Notice of Intention to Seek Greater Punishment

Crown counsel should request that the police ensure that the accused has been served with a Notice of Intention to Seek Greater Punishment (Notice) prior to plea in all cases where the accused has previous conviction(s) within the meaning of s. 255(4) of the Criminal Code.Footnote 5 Where the Notice has not been served and the accused is before the Court intending to enter his/her plea, Crown counsel should provide oral notice of Crown counsel’s intention to seek greater punishment to the accused in court and on the record.

4. Proving Service of Notice of Intention to Seek Greater Punishment

Absent exceptional or compelling circumstances described below, Crown counsel shall prove service of the Notice.

Crown counsel may exercise discretion to not prove service of the Notice, subject to the guidelines for exercising that discretion set out in section 7 of this guideline, where the offender has one prior conviction which occurred more than five years before the commission of the current offence.

In all other circumstances Crown counsel must seek the consent of the Chief Federal Prosecutor (CFP) to not prove service of the Notice. The CFP may exercise discretion to not prove service of the Notice in accordance with the guidelines set out in section 7 of this guideline.

In all matters where the CFP’s consent is granted to not prove service of the Notice, a memo outlining the reasons for the decision must be placed on the file.

5. Proving the Offender’s Criminal Record

In every case for an offence committed under s. 253 or s. 254 of the Criminal Code, regardless of whether service of the Notice was proven, Crown counsel shall prove the criminal record.

Depending on the circumstances, Crown counsel should consider submitting that, according to the principles of sentencing in the Criminal Code:

6. Prohibited Practice

The following practices are not acceptable:

7. Exercise of Discretion

In situations involving the discretion described in section 4 of this guideline, proving service should be determined in all cases by giving consideration to all the circumstances of the offence and the background and circumstances of the offender and globally, the interests of the administration of justice.

Proving service of the Notice will generally be expected in any of the following circumstances:

Crown counsel, and the CFP where necessary, may decide to not prove service of the Notice where there are exceptional or compelling considerations. In determining whether there are “exceptional or compelling considerations” that may warrant not proving service of the notice in Court, Crown counsel and the CFP may consider such factors as:

8. Curative Discharge

Section 255(5) of the Criminal CodeFootnote 9 allows the court to, instead of convicting an offender of an offence committed under s. 253, discharge an offender under s. 730 in circumstances where:

A curative discharge may be granted in the narrow circumstances where the evidence demonstrates that the offender is in need of curative treatment and that his rehabilitation is probable. In considering whether a curative discharge is in the public interest, Crown counsel should consider factors such as:Footnote 10

The offender will be required to tender “medical or other evidence” at the sentencing hearing which has been interpreted to require an “expert qualified to give opinion evidence regarding the offender’s illness, motivation and responsiveness to curative treatment”.Footnote 11

When a curative discharge is being pursued by an offender, Crown counsel shall prove service of the Notice where applicable. If the court declines to grant the curative discharge then the mandatory minimum sentence provision will apply.

In circumstances where the offence caused death or serious bodily injury, Crown counsel may only make submissions in support of a curative discharge with the approval of the CFP.

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